Unichem Enters., Inc. v. United States , 2024 CIT 131 ( 2024 )

Court No. 24-00033 Page 2
as to the entry’s admissibility within the time period provided by that statute.1 Pl.’s
Compl. (“Compl.”) ¶¶ 11-20, ECF No. 5. Plaintiff requests that the court order Customs
to admit and release the entry. Id. ¶ 20. Defendant responds that the instant
admissibility determination is vested in the Drug Enforcement Agency (“DEA”) — not
Customs. Def. Br. at 10. Defendant argues on this basis that Customs has not made a
“protestable decision” under 19 U.S.C. § 1514(a)(4), and that, as a consequence, this
court lacks subject matter jurisdiction under 28 U.S.C. § 1581(a). Id. at 6-15.
For the reasons that follow, the court denies defendant’s motion to dismiss.
BACKGROUND
The instant action covers one entry, Entry No. BED-0054200-4, of 7-Keto
dehydroepiandrosterone (“7-Keto DHEA” or “subject merchandise”). Compl. ¶ 2. On
November 6, 2023, plaintiff imported the subject merchandise. Protest No. 4601-23-
136557 at 7 (Entry Summary), ECF No. 13-1; Compl. ¶¶ 2, 11; 19 C.F.R. § 141.68(b).
On November 8, 2023, the subject merchandise was presented for customs
examination. Def. Br. at 3-4; Summons, ECF No. 1. On that day, Customs detained the
1
Subsequent citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.
Code, 2018 edition.
Court No. 24-00033  Page 3
subject merchandise because plaintiff had not submitted to Customs a Controlled
Substance Import/Export Declaration (DEA Form 236).2 Compl. ¶ 13; Def. Br. at 3.
When Customs detains imported merchandise, 19 U.S.C. § 1499(c)(2) requires
that Customs “issue a notice to the importer . . . no later than 5 days . . . after the
decision to detain the merchandise is made.” In all, Customs issued to plaintiff four
detention notices. On November 8, 2023, the date on which Customs detained the
subject merchandise, Customs issued the first detention notice. Compl. ¶ 13; Pl.’s Ex. A
(“First Detention Notice”), ECF No. 12-1. In that notice, Customs stated that the reason
for detention was “Further Investigation.”3 First Detention Notice.

2
Registered importers are permitted to import Schedule III non-narcotic controlled
substances by filing a controlled substances import declaration, called a DEA Form 236.
21 U.S.C. § 952(b) prohibits the importation of “any non-narcotic controlled substance in
Schedule III, IV, or V, unless” that non-narcotic controlled substance “(1) is imported for
medical, scientific, or other legitimate uses, and (2) is imported pursuant to such
notification, or declaration, or in the case of any nonnarcotic controlled substance in
schedule III, such import permit, notification, or declaration, as the Attorney General
may by regulation prescribe.” See also 21 C.F.R. § 1312.11(b) (requiring importers of
non-narcotic Schedule III drugs to be “properly registered under the act”); id. §
1312.18(a) (stating that certain Schedule III listed non-narcotic controlled substances
needed for “medical, scientific or other legitimate uses” may be imported “pursuant to a
controlled substance import declaration”); id. § 1312.18(b) (allowing “any person
registered” to import “any non-narcotic controlled substance listed in Schedule[] III . . .
which is not subject to the requirement of an import permit . . . [by] fil[ing] a controlled
substances import declaration (DEA Form 236) with the Administration through the DEA
Diversion Control Division . . . not later than 15 calendar days prior to the anticipated
date of release by a customs officer”).
3
According to defendant, three separate entries belonging to plaintiff were subject to
separate DEA investigations when plaintiff imported those entries. Def. Br. at 3-4 n.3.
In May 2023, plaintiff imported a product that the DEA subsequently concluded was an
anabolic steroid and Schedule III controlled substance. Id. Consequently, defendant
asserts that on November 16, 2023, the DEA requested that Customs seize that
merchandise. Id. Defendant states that the other two entries were released after the
DEA concluded that the entries did not contain controlled substances. Id.
Court No. 24-00033  Page 4
Defendant states that on November 14, 2023, Customs sent a sample of the
subject merchandise to Customs’ Laboratory of Scientific Services (“LSS”) for analysis
and identification. Def. Br. at 4.
Defendant maintains that on or around November 14, 2023, the DEA requested
that Customs continue to detain the subject merchandise and that Customs provide the
laboratory report to the DEA. Id. Defendant asserts further that the DEA requested the
detention because it suspected that the subject merchandise is an anabolic steroid
treated as a Schedule III controlled substance under the Controlled Substances Act and
the DEA’s regulations. Id.
On December 7, 2023, Customs issued the second detention notice for the
subject merchandise because, according to defendant, Customs had not completed
testing samples of the merchandise and the DEA had not determined whether the
merchandise was admissible. Id.; see Pl.’s Ex. B (“Second Detention Notice”), ECF No.
12-2. That detention notice stated that the “reason for the detention” was “[f]urther
analysis needed.” Second Detention Notice. In addition, the notice stated that the
subject merchandise was detained “pursuant to” Customs’ authority under 19 U.S.C. §
1499 and 19 C.F.R. § 151.16. Id.On December 11, 2023, plaintiff filed Protest No. 4601-23-136557, which
challenged what plaintiff described as Customs’ “deemed exclusion” of the subject
merchandise. Protest No. 4601-23-136557; Compl. ¶ 15. According to plaintiff in that
protest, the subject merchandise was deemed excluded on December 8, 2023, which
was 30 days after the date on which the subject merchandise had been presented for
customs examination. Protest No. 4601-23-136557 at 4; see 19 U.S.C. § 1499(c)(5)(A).
Court No. 24-00033  Page 5
On January 9, 2024, Customs rejected plaintiff’s protest on the basis that the
challenged decision was “non-protestable.”4 Protest No. 4601-23-136557; Id. ¶ 16.
On January 6, 2024, Customs issued the third detention notice for the subject
merchandise. Def. Br. at 4. According to defendant, Customs was “still waiting” for the
lab to complete its testing and the DEA had not determined whether the merchandise
was admissible. Id.On January 10, 2024, 30 days after plaintiff filed the instant protest, plaintiff’s
protest was deemed denied. See 19 U.S.C. § 1499(c)(5)(B) (providing that “a protest
against the decision to exclude . . . merchandise which has not been allowed or denied
in whole or in part before the 30th day after the day on which the protest was filed shall
be treated as having been denied on such 30th day”).
Defendant asserts that on January 10, 2024, Customs’ laboratory report
presumptively confirmed the identity of the subject merchandise in the shipment of
November 8, 2023, as 7-Keto DHEA, as declared by plaintiff. Id. at 4-5. Defendant

4
Both plaintiff and defendant characterize Customs’ actions on January 9, 2024, as a
“denial” of plaintiff’s protest of the deemed exclusion. See Def. Br. at 4; Compl. ¶ 16.
The basis for that “denial” was that the challenged decision was “non-protestable.” Def.
Br. at 4. The court notes that the protest form used in this case (CBP Form 19)
indicates that where Customs determines that a challenged action is “non-protestable,”
the protest is not considered “denied” but is rather considered to have been “rejected.”
Protest No. 4601-23-136557 at 5 (CBP Form 19). Indeed, where Customs denies a
protest, this Court has “exclusive jurisdiction” over any civil action “to contest the
denial.” 28 U.S.C. § 1581(a); see 19 U.S.C. § 1515(a); see also Padilla v. United
States, 33 CIT 1515, 1519, 659 F. Supp. 2d 1290, 1294 (2009) (“Marking rejected
protests as denied only fosters confusion among the parties bringing or challenging
such protests, government attorneys defending against such litigation, and the courts.”).
Because the basis for Customs’ disposition of plaintiff’s protest was that the protest was
“non-protestable,” the court considers Customs’ actions on January 9, 2024, to be a
rejection — as opposed to a denial — of that protest.
Court No. 24-00033  Page 6
asserts also that Customs subsequently forwarded the laboratory report to the DEA. Id.
at 5.
On February 5, 2024, Customs issued a fourth detention notice. Pl.’s. Ex. C
(“Fourth Detention Notice”), ECF No. 12-3. In its briefing, defendant asserts that
Customs continued to detain plaintiff’s merchandise “because the DEA was actively
investigating the subject merchandise and it had not yet determined if the subject
merchandise was admissible.” Def. Br. at 5; Fourth Detention Notice. However, like the
second and third detention notices, Customs stated in the notice that the reason for the
detention was “[f]urther analysis needed” and that the detention was “pursuant to”
Customs authority under § 1499. Fourth Detention Notice. As with the three previous
notices, the fourth detention notice did not mention the DEA or explain that Customs
was detaining the merchandise on behalf of another federal agency. Id.
On February 6, 2024, plaintiff commenced this action with the filing of its
summons. Summons. On February 7, 2024, plaintiff filed the instant complaint. Compl.
On April 8, 2024, defendant filed its motion to dismiss, alleging that this court lacks
subject matter jurisdiction because “there [was] no protestable decision by CBP” for the
court to review. Def. Br. at 6.
On June 25, 2024, defendant submitted to the court a status report “regarding
the [DEA’s] investigation of merchandise covered by the entry in this case.”5 June 25,
2024 Status Report at 1, ECF No. 21. In that status report, defendant stated that on

5
In the House Report accompanying the North American Free Trade Agreement
Implementation Act, of which the Customs Modernization Act was a part, the Committee
stated its intent that “[o]nce an action has commenced before the CIT, the Customs
Service shall immediately notify the Court if a decision to release, exclude or seize has
been reached.” H.R. Rep. No. 103-361, pt. 1, at 110 (1993).
Court No. 24-00033  Page 7
June 18, 2024, the “DEA informed CBP that, ‘at this time,’ DEA ‘believes UniChem’s
shipment of 7-keto dehydroepiandrosterone is a Schedule III anabolic steroid and its
importation violates DEA regulations.’” Id. Defendant reported that, accordingly, the
DEA requested that Customs seize the subject merchandise. Id. Defendant specified
in that status report that Customs “intend[ed] to seize the entry on DEA’s behalf no
sooner than thirty (30) days from” the June 25 status report. Id.
On September 18, 2024, defendant filed with the court a second status report.
Sept. 18, 2024 Status Report, ECF No. 25. In that status report, defendant stated that
“Customs seized the merchandise . . . on September 10, 2024, and issued [to plaintiff]
the notice of seizure on September 17, 2024.” Id. at 1.
On September 19, 2024, the court held oral argument. Oral Arg. Tr., ECF No. 30.
At oral argument, the court requested that counsel for plaintiff file “post-hearing” a
citation to a statute that vests the authority for determining the admissibility of
merchandise in an agency other than Customs. Oral Arg. Tr. 51:14-21.
On September 24, 2024, plaintiff filed a two-page document listing five
authorities, three of which plaintiff asserted vested admissibility authority in an agency
other than Customs, and two of which did not. Pl.’s Supp. Filing on Federal Agencies’
Authority to Detain and Admit Imported Merchandise, ECF No. 27. In response to
plaintiff’s filing, on October 1, 2024, defendant submitted a motion to supplement its
motion to dismiss to provide “additional documentation and briefing.” Def.’s Mot. to
Supp. (“Def. Mot. Supp.”), ECF No. 28. On October 8, 2024, plaintiff filed a response in
opposition to defendant’s motion to supplement. Pl.’s Resp. in Opp’n Def.’s Mot. to
Supp. (“Pl. Resp. Def. Mot. Supp.”), ECF No. 29.
Court No. 24-00033  Page 8
JURISDICTION AND STANDARD OF REVIEW
Rule 12(b)(1) provides that “a party may assert . . . by motion” the defense of
“lack of subject-matter jurisdiction.” USCIT R. 12(b)(1). “If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.” USCIT
R. 12(h)(3).
Whether a court has subject matter jurisdiction to hear an action is a “threshold”
inquiry. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). “It is
fundamental that the existence of a jurisdictional predicate is a threshold inquiry in
which plaintiff bears the burden of proof.” CR Indus. v. United States, 10 CIT 561, 562
(1986).
DISCUSSION
I. Defendant’s motion to supplement with additional documentation and
briefing
The court addresses first defendant’s motion to supplement its motion to dismiss
with additional documentation and briefing. Defendant seeks to supplement its motion
to dismiss with: (1) “email and letter communications between [Customs] and the
[DEA],” which defendant asserts support its position that the DEA was responsible for
the instant admissibility determination; (2) “a written response to plaintiff’s supplemental
submission” to explain “why the authority to detain and admit [merchandise] is not the
controlling analysis”; and (3) “written analysis regarding the Court’s jurisdiction now that
the merchandise has been seized.” Def. Mot. Supp. at 1, 3.
Plaintiff opposes defendant’s motion. According to plaintiff, defendant’s request
is not permitted by the Rules of the U.S. Court of International Trade (the “Court”).
Plaintiff argues also that defendant’s motion is not — but is required to be — supported
Court No. 24-00033 Page 9
by “newly discovered facts or arguments arising after [defendant’s] prior filing.” Pl.
Resp. Def. Mot. Supp. at 3-4. Plaintiff asserts that defendant “has had multiple
opportunities to argue its motion to dismiss,” and for that reason additional briefing is
unwarranted. Id. at 5.
The court denies for three reasons defendant’s motion to supplement. First, with
respect to any emails or letters between Customs and the DEA, the court does not
consider such internal communications relevant to the question before the court. Such
communications between Customs and the DEA would be relevant in showing only that
Customs may have consulted the DEA in reaching an admissibility determination — not
whether such determination is vested in the DEA. In addition, such communications
would do nothing to notify the importer that authority for determining admissibility of the
subject merchandise was vested in the DEA and that the protest remedy was therefore
unavailable. On this point, the court notes once again that none of the notices that
Customs sent to plaintiff instructed it that an agency other than Customs was
responsible for determining the admissibility of plaintiff’s merchandise.
Second, as to defendant’s request to provide “a written response to plaintiff’s
supplemental submission” and “written analysis” concerning the effect of Customs’
seizure, the Rules of the Court in general permit only a response to a dispositive motion
followed by a reply of the moving party. See USCIT R. 7(d). Moreover, specifically as
to defendant’s request to file “a written response to plaintiff’s supplemental submission,”
defendant seeks an opportunity to explain to the court that “authority to detain and admit
[merchandise] is not the controlling analysis.” Def. Mot. Supp. at 3. However,
defendant has already made this argument, both in its opening brief and in its reply
Court No. 24-00033  Page 10
brief. See Def. Br. at 10 (“The question of whether Congress vested an admissibility
determination in an agency other than CBP . . . hinges on whether another agency has
taken responsibility for determining the legality of the merchandise, even if that agency
does not necessarily have separate authority to detain or exclude the merchandise.”);
Def. Reply Br. at 4-5 (same). Because this basis for defendant’s request “does not raise
any issue that could not have been or was not already addressed” in defendant’s
opening brief and reply brief, the court will not grant supplemental briefing to address
the issue further. LG Elecs., Inc. v. U.S. Int’l Trade Comm’n, 37 CIT 1589, 1591-92
(2013) (citing Crummley v. Soc. Sec. Admin., 794 F. Supp. 2d 46, 62-64 (D.D.C. 2011)).
Third, as to how Customs’ seizure of the merchandise affects the question of this
court’s jurisdiction, during oral argument, the court asked parties to address this issue
directly.6 Specifically, the court inquired as to parties’ views of this Court’s decision in
CBB Grp., Inc. v. United States, 35 CIT 743, 783 F. Supp. 2d 1248 (2011), in which the
Court held that Customs’ seizure of merchandise did not divest the Court of jurisdiction
where that seizure occurred after jurisdiction over a deemed exclusion had attached.
Oral Arg. Tr. at 48:19-24. When asked whether the court could exercise jurisdiction over
the deemed exclusion in light of Customs’ seizure of September 10, 2024, counsel for
defendant responded: “Yes.” Id. at 50:22.

6
This Court lacks jurisdiction to hear challenges to a Customs decision to seize
imported merchandise. See 28 U.S.C. § 1356 (granting to the district courts original
jurisdiction “of any seizure under any law of the United States on land or upon waters
not within admiralty and maritime jurisdiction, except matters within the jurisdiction of
the Court of International Trade under section 1582 of this title”); 28 U.S.C. § 1582(granting jurisdiction to this Court over “any civil action which arises out of an import
transaction and which is commenced by the United States”).
Court No. 24-00033  Page 11
In any event, the court does not consider additional briefing necessary in
deciding the question presented. As this Court has held, a Customs’ seizure of
merchandise “after the jurisdiction of the Court of International Trade has attached to a
plaintiff’s cause of action contesting a deemed exclusion cannot be binding on this
Court, for otherwise the agency’s determination would be permitted to usurp the Court’s
judicial power and prevent the Court from fulfilling its judicial responsibility.” CBB Grp.,
35 CIT at 749, 783 F. Supp. 2d at 1254; see also Root Scis., LLC v. United States, 45
CIT __, __, 543 F. Supp. 3d 1358, 1367 (2021) (“[W]here a seizure occurs prior to a
deemed exclusion by operation of law, a deemed exclusion will not occur.” (emphasis
supplied)); Blink Design, Inc. v. United States, 38 CIT 746, 759, 986 F. Supp. 2d 1348,
1360 (2014) (collecting cases) (“[T]his court repeatedly has found subject matter
jurisdiction wanting in cases, such as this one, where Customs seized a plaintiff’s
entries prior to the plaintiff’s filing suit in this Court.” (emphasis supplied)). In the instant
case, Customs seized the subject merchandise — and issued the notice of seizure —
after the date that the entries were allegedly deemed excluded and also after the date
that plaintiff filed suit in this Court. See Summons; Sept. 18, 2024 Status Report at 1.
For that reason, Customs’ seizure of plaintiff’s merchandise does not strip the court of
jurisdiction over the alleged deemed exclusion.
For the reasons outlined above, the court denies defendant’s motion to
supplement.
II. Whether the Court has jurisdiction under § 1581(a)
U.S. law vested the authority to determine the admissibility of the subject
merchandise in Customs, not the DEA. Therefore, the court has subject matter
Court No. 24-00033  Page 12
jurisdiction over the exclusion by operation of law of the merchandise, and defendant’s
motion to dismiss is denied.
A. Legal framework
28 U.S.C. § 1581(a) confers upon the Court exclusive jurisdiction “of any civil
action commenced to contest the denial of a protest, in whole or in part, under section
515 of the Tariff Act of 1930.” See Hartford Fire Ins. Co. v. United States, 544 F.3d
1289, 1291 (Fed. Cir. 2008) (“In subsection 1581(a), Congress set out an express
scheme for administrative and judicial review of Customs’ actions.”) (citations omitted).
Under 19 U.S.C. § 1514(a)(4), “the exclusion of merchandise from entry” is “final and
conclusive upon all persons . . . unless a protest is filed.”
19 U.S.C. § 1499(c) governs the requirements for when Customs determines to
detain merchandise presented for customs examination.7 Under § 1499(c)(1), Customs
is required to “decide whether to release or detain the merchandise,” within five days
“following the date on which merchandise is presented for customs examination.”
Merchandise not released within the five-day period “shall be considered to be detained
merchandise.” Id. If Customs fails “to make a final determination with respect to the
admissibility of detained merchandise within 30 days after the merchandise has been
presented for customs examination,” that failure “shall be treated as a decision of the
Customs Service to exclude the merchandise for purposes of section 1514(a)(4) of [title
19].” Id. § 1499(c)(5)(A).

7
Customs’ regulations require that the port director “examine such packages or
quantities of merchandise as he deems necessary for the determination of duties and
for compliance with the Customs laws and any other laws enforced by the Customs
Service.” 19 C.F.R. § 151.1.
Court No. 24-00033 Page 13
However, the requirements of § 1499(c) — including the notice requirement
under subsection (c)(1) and exclusion by operation of law under subsection (c)(5)(A) —
do not apply with respect to merchandise for which “the determination of admissibility is
vested in an agency other than the Customs Service.” Id. § 1499(c).
19 U.S.C. § 1499(c)(4) authorizes Customs to seize “detained merchandise” if
“otherwise provided by law.” 19 U.S.C. § 1595a(c) in turn gives Customs the authority
to seize “[m]erchandise introduced contrary to law.” As relevant here, § 1595a(c)(1)(B)
provides that merchandise “which is introduced or attempted to be introduced into the
United States . . . shall be seized and forfeited if it . . . is a controlled substance, as
defined in the Controlled Substances Act (21 U.S.C. 801 et seq.), and is not imported in
accordance with applicable law.”
B. Analysis
The court considers whether plaintiff’s merchandise was “deemed excluded” by
reason of Customs’ failure to make a final determination as to the admissibility of the
merchandise within 30 days after plaintiff presented it to Customs for examination.
Defendant contends that § 1499(c) does not apply because the instant
admissibility determination is vested in the DEA, not Customs. Def. Br. at 10.
According to defendant, the DEA “is actively determining whether the subject
merchandise violates the controlled substances laws and thus whether it is admissible
Court No. 24-00033  Page 14
and, therefore, for purposes of jurisdiction, the provisions of 19 U.S.C. § 1499(c) do not
apply.” 8 Def. Reply Br. at 6.
According to plaintiff, the determination as to the admissibility of plaintiff’s
merchandise is vested in Customs, not the DEA.
The court concludes that Customs determined to detain the subject merchandise
under § 1499(c), and that Customs continued that detention greater than 30 days after
the merchandise was presented to Customs for examination. As a result, §
1499(c)(5)(A) requires that Customs’ inaction “be treated as a decision of the Customs
Service to exclude the merchandise for purposes of section 1514(a)(4).”
“Customs must engage in some sort of decision-making process in order for
there to be a protestable decision.” Xerox Corp. v. United States, 423 F.3d 1356, 1363
(Fed. Cir. 2005) (quoting U.S. Shoe Corp. v. United States, 114 F.3d 1564, 1569 (Fed.
Cir. 1997)). “[A] decision may not be protested when Customs is merely taking action to
effectuate a decision of another agency.” Wirtgen Am., Inc. v. United States, 44 CIT __,
__, 437 F. Supp. 3d 1302, 1306 (2020) (citing Mitsubishi Elecs. Am., Inc. v. United
States, 44 F.3d 973, 977 (Fed. Cir. 1994)); 19 U.S.C. § 1514(a) (stating that protests
may be filed to challenge “decisions of the Customs Service”).
Once merchandise is presented for customs examination, § 1499(c)(5)(A) gives
Customs 30 days to make the “final determination with respect to the admissibility of
detained merchandise.” The purpose of § 1499(c)(5) is to provide the importer a

8
At oral argument, counsel for defendant stated: “Both agencies have the legal
authority” to determine whether the merchandise is a controlled substance. Oral Arg. Tr.
at 31:4-7. Nevertheless, defendant continued to maintain that “here, it is the DEA[]
[b]ecause of the circumstances of the case.” Id. at 31:11-12.
Court No. 24-00033  Page 15
remedy where Customs takes no action concerning merchandise that Customs has
detained. Root Scis., LLC, 45 CIT at __, 543 F. Supp. 3d at 1369. Failure by Customs
to make the final determination within the 30-day period “shall be treated as a decision
of the Customs Service to exclude the merchandise for purposes of section 1514(a)(4).”
19 U.S.C. § 1499(c)(5)(A). As defendant acknowledges, § 1499(c) by its terms applies
only in situations in which Customs has the authority to determine the admissibility of
merchandise. Def. Br. at 3 (quoting 19 U.S.C. § 1499(c)).
In the instant case, Customs exercised its authority pursuant to § 1499(c) to
detain the subject merchandise pending Customs’ “final determination with respect to”
its admissibility. On November 8, 2023, Customs detained the subject merchandise
because, according to defendant, “CBP was concerned that the shipment contained
controlled substances.” Def. Br. at 3-4 (emphasis supplied). On that day, Customs
issued to plaintiff the first detention notice.9 See First Detention Notice. Over the
course of the next three months, Customs issued to plaintiff three additional detention
notices, none of which mentioned the DEA and each of which expressly and specifically
invoked Customs’ authority under § 1499. See Second Detention Notice (dated

9
The detention notice of November 8, 2023, included in Box 1 a space for Customs to
inform plaintiff whether its merchandise was held by Customs on behalf of another
agency. First Detention Notice. Specifically, Box 1 stated: “Held for other agency?” Id.
Underneath the question were two boxes — a box for “Yes” and a box for “No” — along
with a space for Customs to provide the name of the agency on whose behalf Customs
was holding the merchandise. Id. Customs left Box 1 blank. Id.
Court No. 24-00033 Page 16
December 7, 2023); Fourth Detention Notice (dated February 5, 2024).10 As stated,
Customs is required to provide such notices to the importer under § 1499(c)(2),
“[e]xcept in the case of merchandise” for which “the determination of admissibility is
vested in an agency other than the Customs Service.” Therefore, that Customs issued
the detention notices refutes defendant’s position and establishes that Customs was
exercising its authority to determine the admissibility of the detained merchandise.
In addition, the notice of November 8, 2023, directed plaintiff to “[s]end all
correspondence” to “ATCET” — Customs’ Anti-Terrorism Contraband Enforcement
Team. First Detention Notice. And, according to defendant, on November 14, 2023,
Customs sent a sample of the subject merchandise to Customs’ Laboratory of Scientific
Services for analysis and identification of the product. Def. Br. at 4. So, Customs
detained the subject merchandise, sent a sample of that merchandise to Customs’ own
lab and instructed plaintiff that correspondence pertaining to that merchandise should
be sent to Customs.
Customs’ failure to make the “final determination with respect to the admissibility”
of plaintiff’s detained merchandise within 30 days of November 8, 2023, resulted by
operation of law in the “exclu[sion] [of] the merchandise for purposes of [19 U.S.C. §
1514(a)(4)].” 19 U.S.C. § 1499(c)(5)(A). On December 11, 2023, plaintiff filed a timely
protest of the deemed exclusion. Protest No. 4601-23-136557; Compl. ¶ 15. Then, on
January 10, 2024, plaintiff’s protest was deemed denied. 19 U.S.C. § 1499(c)(5)(B).
10
On January 6, 2024, Customs issued to plaintiff a third detention notice, which
defendant submitted to the record at oral argument. Except for the date, the third
detention notice was identical in all respects with the second and fourth detention
notices.
Court No. 24-00033  Page 17
Accordingly, because plaintiff timely protested Customs’ deemed exclusion of the
subject merchandise, the court has subject matter jurisdiction over plaintiff’s action “to
contest [that] denial” under 28 U.S.C. § 1581(a). See also 19 U.S.C. § 1514(a)(4).
Defendant maintains that the subject merchandise was not deemed excluded
under § 1499(c) because the admissibility determination is vested in the DEA.11 Def.
Reply Br. at 4-5. Defendant argues that the DEA is “the agency responsible for
enforcing the controlled substances laws and regulations,” and that the DEA’s
responsibilities in that capacity include “regulating the importation of controlled
substances.” Def. Br. at 8 (citing 21 U.S.C. § 952). According to defendant, “[t]he
question of whether Congress vested an admissibility determination in an agency other
than CBP (for purposes of 19 U.S.C. § 1499(c)) hinges on whether another agency has
taken responsibility for determining the legality of the merchandise, even if that agency
does not necessarily have separate legal authority to detain or exclude the
merchandise.” Def. Reply Br. at 5 (citing CBB Grp., 35 CIT at 746, 783 F. Supp. 2d at

11
To support its position, defendant attached to its reply brief the declaration of Brian
Six, Division Counsel for the San Francisco Field Division of the DEA. Declaration of
Mr. Brian J. Six, ECF No. 14-1. In that declaration, Mr. Six recounts his correspondence
with plaintiff’s counsel, in which they discussed whether three of plaintiff’s entries,
including the instant entry, contained controlled substances. Id. ¶¶ 4-14. The
declaration does not support defendant’s position that the authority to determine the
admissibility of the subject merchandise is vested in the DEA. To the contrary, Mr. Six
states that he advised plaintiff’s counsel that “[he] was aware of the additional
detentions in Newark but was not familiar with specifics of DEA’s investigation of
Unichem’s” merchandise in that entry. Id. ¶ 6. The declaration does not negate that
Customs had the authority to determine the admissibility of the subject merchandise.
Court No. 24-00033  Page 18
1251); see also Def. Br. at 11-13 (citing Andritz Sundwig GMBH v. United States, 42 CIT
__, __, 322 F. Supp. 3d 1360, 1364 (2018)).12
Defendant’s proffered approach is untenable. Specifically, as this case
illustrates, defendant’s approach leaves importers with no way of knowing whether the
authority for determining the admissibility of their merchandise is vested in Customs —
in which case the protest remedy is available — or in another agency — in which case
the protest remedy is not available. Def. Reply Br. at 5. Instead, the authority for
determining the admissibility of merchandise is “vested in an agency other than the
Customs Service” under § 1499(c) when the law by statute or regulation so provides.
The House Report accompanying the Customs Modernization Act described the
circumstances in which the admissibility determination is “vested in an agency other
than the Customs Service,” § 1499(c):
The Committee recognizes that Customs often detains merchandise on
behalf of other Government agencies and is not directly involved in the
activities which result in the decision to admit or exclude merchandise.
These agencies include the Food and Drug Administration (FDA) and the
Department of Agriculture [(USDA)], among others. This procedure

12
Neither case on which defendant relies supports its approach. In fact, the cases
prove the opposite. In CBB Grp., Inc. v. United States, 35 CIT 743, 746, 783 F. Supp.
2d 1248, 1251 (2011), the Court observed only that the admissibility determination in
that case “turn[ed] on the question of whether copyright violations occurred upon
importation” — a determination “not vested in any agency other than Customs.” There,
§ 1595a(c)(2)(C) authorized Customs to seize merchandise imported in violation of the
copyright laws, just as § 1595a(c)(1)(B) authorizes Customs to seize merchandise
imported in violation of the controlled substances laws. Id. Then, in Andritz Sundwig
GMBH v. United States, 42 CIT __, __, 322 F. Supp. 3d 1360, 1364 (2018), the Court
concluded only that it lacked jurisdiction over decisions of the USDA to exclude
merchandise from entry. In that case, the exclusions were pursuant to “Emergency
Action Notifications,” which “list[ed] USDA as the supervisory agency and cit[ed] to the
Plant Protection Act and regulations promulgated thereunder.” Id. (citing 7 U.S.C. §
7701). By contrast, and as noted above, in the instant case Customs (not DEA) issued
to plaintiff detention notices that were “pursuant to” Customs’ authority under § 1499
(not any statutory authority of the DEA) and did not reference any other agency.
Court No. 24-00033  Page 19
providing recourse through the Court of International Trade would be
reserved for admissibility determinations for which the Customs Service is
responsible. Nothing in this section is intended to change the procedures
or relationship between Customs and other Federal agencies. However,
this would not preclude application of this new procedure and remedy in
those cases where Customs has the responsibility and the authority to
determine the admissibility of the merchandise, and such procedures and
remedies are agreed to by the other agency.
H.R. Rep. No. 103-361, pt. 1, at 112 (1993). 
The House Report demonstrates that Congress did not intend for the
requirements of § 1499(c) to apply to instances in which Customs detains merchandise
“on behalf of another agency” such that Customs “is not directly involved in the activities
which result in the decision to admit or exclude merchandise.”13 Id. That report
referenced the FDA and the USDA as illustrative examples of agencies on whose behalf
Customs “often detains merchandise.” Id. Titles 21 and 7 in turn include express
statutory authority for those agencies to “refuse[] admission” to, 21 U.S.C. § 381(a), or
“hold, seize . . . or otherwise dispose” of, 7 U.S.C. § 7714(a), certain merchandise
regulated by those agencies. See 21 U.S.C. § 381(a) (requiring the Secretary of the
Treasury to “deliver to the Secretary of Health and Human Services [(HHS)], upon his
request, samples of food, drugs, devices, tobacco products, and cosmetics which are
being imported . . . into the United States” and allowing the Secretary of HHS to
“refuse[] admission” of those products under certain conditions); 7 U.S.C. § 7714(a)
(authorizing the Secretary of USDA to “hold, seize, quarantine, treat, apply other

13
On this point, and as outlined above, Customs issued to plaintiff detention notices
“pursuant to” § 1499, sent samples of the subject merchandise to Customs’ lab and
instructed plaintiff to send correspondence to Customs. Any contention that Customs
either detained plaintiff’s merchandise “on behalf of another agency” or “[was] not
directly involved in the activities which result[ed] in the decision to admit or exclude”
plaintiff’s merchandise is without merit.
Court No. 24-00033  Page 20
remedial measures to, destroy, or otherwise dispose of any plant, plant pest, noxious
weed, biological control organism, plant product, article, or means of conveyance that . .
. is moving into or through the United States” if “the Secretary has reason to believe [the
merchandise] is a plant pest or noxious weed or is infested with a plant pest or noxious
weed”); see also Andritz, 42 CIT at __, 322 F. Supp. 3d at 1364 (holding that this Court
lacked jurisdiction over an action by the USDA to exclude merchandise from entry).
Congress has authorized other agencies to regulate certain imported products, and
those agencies have promulgated regulations delegating to themselves express
authority to determine the admissibility of those products. See, e.g., 16 U.S.C. §§
1538(d)(3), 1540(e)(3) (Secretary of the Interior); see also 50 C.F.R. § 14.52 (“[A]
Service officer [of the U.S. Fish and Wildlife Service] must clear all wildlife imported into
the United States prior to release from detention by Customs officers.”).14

14
As another example, the Animal Health Protection Act, 7 U.S.C. § 8301, et seq., gives
to the Secretary of Agriculture authority to issue regulations restricting the importation of
meat and meat-food products. Under that authority, Department of Agriculture
regulations provide that Customs may detain certain imports regulated under that
statute, but officers of the USDA will determine whether the detained imports may enter
the United States:
(a) All imported meat and meat-food products offered for entry into the
United States are subject to the regulations prescribed by the Secretary of
Agriculture under the Animal Health Protection Act. . . . Such meat and
meat-food products will not be released from CBP custody prior to
inspection by an inspector of the Food Safety and Inspection Service, Meat
and Poultry Inspection, except when authority is given by such inspector for
inspection at the importer’s premises or other place not under CBP
supervision.
19 C.F.R. § 12.8(a).
Court No. 24-00033 Page 21
The statutory and regulatory scheme in the instant case stands in stark contrast.
Defendant points to 21 U.S.C. § 952(a), which grants to the Attorney General authority
to prescribe regulations governing the importation of controlled substances. Def. Br. at
8. Under that authority, the Attorney General has issued regulations that, inter alia,
prohibit persons from importing controlled substances unless those persons either have
a permit and are “properly registered,” 21 C.F.R. § 1312.11(a), or have “filed an import
declaration,” id. § 1312.11(b).15 However, those provisions do not provide authority to
the DEA to determine the admissibility of any particular entry. See Inspired Ventures,
LLC v. United States, Slip Op. 24-121, 2024 WL 4616192, at *5 (CIT Oct. 30, 2024)
(“The mere promulgation of product standards and regulations does not vest that
agency with the authority to deny [admissibility to] imports that fail to meet those
15
Similar to the DEA, the U.S. Fish and Wildlife Service has established by regulation
an “import declaration requirement.” 50 C.F.R. § 14.61. However, in contrast to the
DEA, the U.S. Fish and Wildlife Service has established by regulation also the authority
to determine whether imported wildlife actually complies with that requirement. 50
C.F.R. § 14.53 governs the “[d]etention and refusal of clearance” of imported wildlife:
(a) Detention. Any Service officer, or Customs officer [where the Service
officer is unavailable], may detain imported . . . wildlife. . . . As soon as
practicable following the importation . . . and decision to detain, the Service
will mail a notice of detention . . . to the importer. . . .
(b) Refusal of clearance. Any Service officer may refuse clearance of
imported . . . wildlife . . . when there are responsible grounds to believe that:
(1) A Federal law or regulation has been violated;
(2) . . .
(3) Any permit, license, or other documentation required for
such wildlife is not available, is not currently valid, has been
suspended or revoked, or is not authentic;
(4) The importer . . . has filed an incorrect or incomplete
declaration for importation as provided in § 14.61 or § 14.63 .
...
Court No. 24-00033 Page 22
standards.”). Defendant has not identified any statute or regulation that grants to the
DEA authority to determine whether imported merchandise suspected to contain
controlled substances is admissible into the United States. To the contrary, 19 U.S.C. §
1595a(c)(1)(B) grants to Customs — not the DEA — the authority to seize merchandise
imported in violation of the controlled substances laws. In short, Congress did not grant
to the DEA — nor has the DEA by regulation claimed — the authority to determine the
admissibility of imported merchandise. For that reason, and for the reasons outlined
Court No. 24-00033 Page 23
above, the authority to determine the admissibility of the subject merchandise was not
“vested in an agency other than the Customs Service.” 19 U.S.C. § 1499(c).16
In sum, Customs’ failure to make a final determination as to the admissibility of
the subject merchandise within the required 30 days resulted in the exclusion of the
merchandise by operation of law. See 19 U.S.C. § 1499(c)(5)(A). As a consequence,
the court has subject matter jurisdiction over the deemed denial of plaintiff’s protest.
16
“[O]nce an action respecting a detention is commenced,” the statute requires that the
court “grant the appropriate relief,” which may include “an order to cancel the detention
and release the merchandise,” unless “the Customs Service establishes by a
preponderance of the evidence that an admissibility decision has not been reached for
good cause.” 19 U.S.C. § 1499(c)(5)(C). The House Report supporting the Customs
Modernization Act that established § 1499(c)’s procedures elaborated on the “good
cause” standard:
In meeting the “good cause” burden related to an admissibility decision
before the Court of International Trade, the Committee intends that the
Customs Service may satisfy the “good cause” burden by showing that
another federal agency with jurisdiction over an admissibility decision has
not yet reached a determination regarding the admissibility of the
merchandise. The Committee intends, however, that this not provide the
basis for continued inordinate delay and would encourage the determination
by the court of a reasonable date certain for a decision.
H.R. Rep. No. 103-361, pt. 1, at 112 (1993). The court considers this language
relevant to the question of whether the court may exercise jurisdiction in the
instant case. Congress plainly envisioned a scenario, such as the one before the
court, in which Customs may decide on its own to detain merchandise for which
Customs is authorized under the customs laws to determine admissibility, but
where “jurisdiction over” that admissibility determination resides in another
agency. The court therefore has subject matter jurisdiction to review the deemed
denial of plaintiff’s protest of the deemed exclusion. The nature of the DEA’s
communications to Customs — a matter of dispute in parties’ briefing on
defendant’s motion to dismiss — will likely be a relevant consideration in the
court’s decision as to “the appropriate relief.” 19 U.S.C. § 1499(c)(5)(C); see also
28 U.S.C. § 2640(a)(1) (providing that in “[c]ivil actions contesting the denial of a
protest” under 19 U.S.C. § 1515, the court “shall make its determination upon the
basis of the record made before the court”).
Court No. 24-00033 Page 24
CONCLUSION
For the reasons set out above, it is hereby
ORDERED that defendant’s motion to supplement its motion to dismiss is
DENIED; and it is further
ORDERED that defendant’s motion to dismiss for lack of subject matter
jurisdiction is DENIED.
/s/ Timothy M. Reif
Timothy M. Reif, Judge
Dated: 1RYHPEHU
New York, New York